Uniper is one of the leading utility companies with increasing focus on sustainable energy solutions. Uniper is investing in own solar energy production and offering (i) turnkey photovoltaic systems and sale of electricity generated from solar power to its private and corporate customers (the “End Customers”). For this purpose, Uniper and Uniper`s Affiliates have a need to buy quantities of the Product for various projects in the future and hence intend to conclude several frame agreements, alike this Contract, with different Suppliers for the supply of the Product.
Uniper is a German utility company with gas and power generation and trading business. Uniper is interested in entering the market of renewable power generation and trading. Uniper, as well as Uniper’s Affiliates, are each acting severally and on their own accounts when concluding Purchase Orders under this Contract and hence neither of them shall be treated as joint creditors (“Gesamtgläubiger”) nor as joint debitors (“Gesamtschuldner”), neither under this Contract nor under any Purchase Order.
Seller is a company specialized in designing and manufacturing the Product.
Uniper intends to conclude this Contract with Seller and with other suppliers, in order to enable all Uniper and Uniper’s Affiliates to buy quantities of the Product from the Seller or other suppliers, if and when needed, by concluding individual Purchase Orders after having conducted a Mini-Competition.
Seller has the necessary knowledge and experience and is willing to design, manufacture and deliver the Product to the Buyer and to provide the (ancillary) services in accordance with the terms and conditions of this Contract and the relevant Purchase Order.
This Contract provides the frame terms and condition for future Purchase Orders that may be concluded under it. Only a Purchase Order creates a binding agreement for the sale and purchase of the Product.
Uniper intends to limit the total number of Suppliers in the range of 3 to 6 Suppliers.
For the sole purpose of satisfying the requirements of the public procurement Law and subject to clause 1.5 [No Guaranteed Volume], Uniper specifies the maximum order volume to be contracted via Purchase Orders under the Contracts concluded according to this award procedure to be on the whole 150 million EUR*.*
The Contract
1. Definitions


Affiliate(s)		of a Party means any legal entity that is (a) directly or indirectly controlling the Party, or (b) under the same direct or indirect control as the Party, or (c) directly or indirectly controlled by the Party for so long as such control lasts. Control shall exist through direct or indirect ownership of 50 % or more of the nominal value of the issued equity share capital or 50 % or more of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions.
Appendix		Means and appendix to this Contract.
BGB		Means “Bürgerliches Gesetzbuch”, the German Civil Code.
Buyer		Means both Uniper and Uniper Affiliate placing a Purchase Order with the Seller under this Contract.
Day		means a calendar day according to the Gregorian calendar.
Defect		The Product is free from a defect in the material, if the Product, 1. according to what the Parties have agreed, has the agreed quality, is suitable for the use stipulated in the Purchase Order, is handed over with the agreed accessories and the agreed instructions, including assembly and installation instructions; the quality according lit. a) above includes the type, quantity, quality, functionality, compatibility, interoperability and other features of the Product for which the Parties have specified certain requirements; 1. according to what is objectively required, is suitable and fit for purpose for normal use, has a quality which is customary for goods of the same type and which the Buyer can expect, taking into account the nature of the goods and the public statements made by or on behalf of the seller, in particular in advertising, conforms to the nature of a sample or specimen provided by the Seller to the Buyer before delivery; and is handed over with the accessories, including packaging, assembly or installation instructions and other instructions that the Buyer can expect to receive. The Product is free from defects of title if third parties in respect of the Product, 1. cannot assert any rights against the Buyer, or 2. can only assert those rights against the Buyer which the Buyer has expressly assumed in the Purchase Order. This definition has been constructed in accordance with §§ 434, 435 BGB.
End Customer		has the meaning ascribed to it in Background (A).
European Economic Area		comprises all member states of the European Union, Iceland, Lichtenstein and Norway.
Governing Law		means the Law governing this Contract in accordance with clause 16.1 [Governing Law].
HGB		means “Handelsgesetzbuch”, the German Commercial Code.
Incoterms		means the “Incoterms 2020” issued by the International Chamber of Commerce.
Installation Site		means the location where the Product shall be installed as communicated by the Buyer.
Law		means all applicable acts by a Parliament or other public body or authorized institution having the right to enact a law (formal law) as well as all other applicable laws, regulations, decrees, ordinances, orders, etc. (material law) including the relevant interpretation of the laws by the relevant highest courts in a country or the European Court of Justice. The term “law” also includes decisions and orders by competent authorities and further includes the Governing Law. The term “law” shall also include technical norms and regulations, such as, but not limited to, DIN-norms and EN-norms.
Mini-Competition		means a competitive supplier selection process to be conducted ahead of placing a Purchase Order by the Buyer among the suppliers who have concluded a frame agreement with Uniper on the supply of the Product, alike or similar to this Agreement.
Product		means, as applicable, either or all of the photovoltaic modules (“Hardware”) and the documentation (“Documentation”).
Purchase Order		means a binding agreement on the design, manufacturing, delivery, sale and purchase of a quantity of the Product concluded between Buyer and a Supplier under this Contract. A Purchase Order shall incorporate the terms and conditions of this Contract and shall deviate from them only where necessary.
Purchase Request		means a request for receiving a binding offer from the Seller / another Supplier on the supply of a quantity of the Product as further detailed in the request.
Scope of Supply		comprises, 1. the design, manufacturing, testing, packing, marking and shipment of the Product, 2. transferring the title of ownership to the Product to the Buyer, 3. taking out the relevant insurances, 4. the collaboration with and assistance of the Buyer, all as detailed in clauses 3 [The Product], 4 [Transport and Shipment], 5 [Collaboration, Assistance, Other Duties], 6 [Transfer of Title and Risk] and clause 13 [Insurance].
Seller		means the entity signing this Contract for and on behalf of the Seller.
Serial Defect		means a Defect as described in clause 11.3.3 [Serial Defect].
Software Virus		means software viruses, worms, spyware or the like malware.
Supplier		means, as the context requires, either or all of the suppliers, including the Seller, that have signed a frame agreement alike or similar to this Contract with Uniper.
Uniper		means the Uniper entity signing this Contract.
Vicarious Agent		means, in accordance with § 278 BGB, any legal representative of the Buyer, respectively the Seller, as well as any persons who Buyer/Seller uses to perform their respective obligations under a Purchase Order, for example, subcontractors.

1. Interpretation
  1. If a Party shall have a legally binding and enforceable obligation or right, that is described by using the words „shall“, “is/shall be obliged/obligated to”, “has to” or “must” (denoting an obligation) or “has the right to”, “is entitled to” or “can claim” (denoting a right).
  2. If a Party shall have a discretion or choice, this is expressed by use of the term “may”. Any discretion shall be exercised in a reasonable manner and in good faith in accordance with § 242 BGB.
  3. Uniper, as well as Uniper’s Affiliates, are each acting severally and on their own account when concluding Purchase Orders, exercising rights and remedies and entering into obligations under this Contract or Purchase Order and hence neither of them shall be treated as joint creditors (“Gesamtgläubiger”) nor as joint debitors (“Gesamtschuldner”), neither under this Contract nor under any Purchase Order. Rights and obligations arising from and in connection with a Purchase Order shall exclusively inure and exist in the relevant Buyer and Seller having concluded such Purchase Order.
  4. With regard to this Contract, Uniper may exercise any right or remedy severally and independently of each other, including any right to terminate this Contract or to declare avoidance of contract (“Rücktritt”) or other rights to change (“Gestaltungsrechte”) this Contract.
  5. Unless otherwise expressly stated in this Contract, any reference to a Law means a reference to that Law as applicable at any given point in time.
  6. A reference to a clause in this Contract includes a reference to all sub-clauses to the referenced clause.
  7. A reference to an Appendix includes a reference to all sub-appendices to the referenced Appendix.
  8. A reference to a clause or an Appendix to this Contract or to a norm in a Law, includes a reference to both the matter of facts and the consequences described in there (“Rechtsgrundverweis”). However, if only the consequences described in the referenced clause, Appendix or norm shall apply (“Rechtsfolgenverweis”), the wording “… the consequences of clause XX, Appendix XX or norm XX…” is used.
  9. A reference in this Contract includes further references in the passage, norm, clause or Appendix to which reference is made, unless the further reference is expressly excluded.
  10. Subject to the clauses 1.2.1 to 1.2.9 above, the principles of interpretation of the Governing Law shall exclusively apply.
  11. Whenever this Contract stipulates that a communication has to be “written” or “in writing” or “in written form”, this shall mean that a document is signed,
    - 1. by hand, or
      2. by advanced electronic signature within the meaning of Art. 26 Regulation (EU) No. 910/2014 of 23 July 2014;
      3. or by qualified electronic signature within the meaning of Art. 32 Regulation (EU) No. 910/2014 of 23 July 2014

and that such document is transmitted to the other party by letter, or as attachment to an electronic mail or by such other means as are agreed by the parties case by case.

- 1. The word „including“ shall be interpreted as “including, but not limited to”.
1. Contract Documents and Order of Precedence

Contract Documents:

- - 1. This Contract consists of:
      1. these terms and conditions,
      2. Appendix 1: Uniper’s Supplier Code of Conduct,
      3. Appendix 2: PV Modules Quality Assurance Requirements,
      4. Appendix 3: Specimen Seller’s Parent Company Guarantee
      5. Seller’s final offer and declarations received during the pre-qualification stage under Public Procurement process.
    2. The Seller confirms that Seller has thoroughly checked the above-mentioned contract documents with the expertise of an experienced entrepreneur before the conclusion of the Contract and has informed the Buyer of all contradictions, errors, ambiguities, deviations and other inconsistencies (altogether referred to as “Errors”) before the conclusion of the Contract. Seller is not entitled to raise a variation claim in accordance with clause 7 [Variations to the Scope of Supply] based on any such Errors, unless Seller proves that Seller was unable to discover the Errors despite having duly checked the document in accordance with this clause.

Order of Precedence:

- - 1. If the Contract contains conflicting provisions, these terms and conditions shall have priority over provisions in the Appendices.
    2. The Appendices shall – unless otherwise clearly dictated by the circumstances – apply in the order specified in clause 1.3.1. [Contract Documents].

No General Terms and Conditions

Neither Party shall apply its general terms and conditions to this Contract. If general terms and conditions are attached to or printed on other documents, such as proposal letters, price sheets, Product information, etc., these general terms and conditions shall not apply, unless the other Party, at its discretion, expressly agrees to the application of these general terms and conditions in writing.

No pre-determination for Mini-Competitions

The contract documents referred to in clause 1.3.1 [Contract Documents] do not pre-determine the terms and conditions of a Mini-Competition. The Buyer is entitled to specify, deviate from, tighten, mitigate, adopt or supplement the contract documents for the purpose of the specific purchase transaction for which a Mini-Competition is conducted.

1. Contract Term
  1. The first term of this Contract is [2] years (the „Base Term“).
  2. Uniper has the right, as an option, that Uniper may or may not exercise at Uniper’s sole discretion, to extend the term of this Contract each year (each an “Extension Option”) for three additional years (the “Extended Term”), starting from the Day following the last Day of the Base Term, respectively the last Day of the Extended Term. However, the maximum term shall be [5] years.
  3. Each Extension Option shall be exercised by written notice which notice is to be received by the Seller latest until [90] Days prior to the end of the Base Term, respectively the Extended Term. If the notice is received too late, the notice shall have no legal effect, unless the Seller consents to extending the term as set out in the notice.
2. No Guaranteed Volume

Uniper does not guarantee, warrant or otherwise promise to the Seller any minimum quantities of the Product to be purchased under this Contract.

Ordering Process, Purchase Orders
1. General Provisions on Purchase Orders
  1. The terms and conditions of this Contract shall be deemed incorporated into a Purchase Order concluded under this Contract even without any specific reference to this Contract in the Purchase Order itself. Deviations from the terms and conditions of this Contract in a Purchase Order are valid only if expressly made in writing.
  2. Each Party has the right to demand correction of obvious typing or calculation errors in a Purchase Order.
  3. Neither Party shall apply its general terms and conditions to a Purchase Order. If general terms and conditions are attached to or printed on other documents, such as proposal letters, invoices, etc., these general terms and conditions shall not apply, unless the other Party, at its discretion, expressly agrees to the application of these general terms and conditions in writing.
2. Mini-Competition
  1. Buyer will conduct a Mini-Competition with the Suppliers prior to placing a Purchase Order under this Contract.
  2. The framework contract partners should participate in the mini-competition. Participation can only be refused for serious reasons. The buyer has to be informed of these reasons in writing.
  3. Buyer will inform the Suppliers about the technical details and requirements and procedural details of a Mini-Competition, , when sending an invitation to participate in a Mini-Competition to the Suppliers. The Product which will be the most competitive over the entire lifetime of the Product will be awarded. The award criteria will be based, inter alia, on the following award principles:
    - 1. Price,
      2. PV module performance
      3. Average degradation
      4. Product and performance guarantee
      5. Quality assurance
      6. Compliance with pass/fail criteria
  4. Buyer has the right to demand that, as a condition precedent for participating in a Mini-Competition, Suppliers renew their documentation proving that they still meet the qualification criteria that were required for entering into this Contract. If it is unclear whether the Suppliers have the technical and professional capacities and abilities with regard to the module specifically requested in each case, the Buyer is also entitled to demand proof of the capacities and abilities of the Suppliers by submitting references according to 3.4.1 a) of the RFP with regard to the individually defined PV module type and/or module technology
  5. Buyer has the right, without incurring any liability to the Suppliers, to cancel, change or reschedule a Mini-Competition at any time by notice to the invited Suppliers, e.g. if no economic result could be achieved. The Buyer is entitled to specify, deviate from, tighten, mitigate, adopt or supplement the terms and conditions of this Contract and the other contract documents referred to in clause 1.3.1 [Contract Documents] in the tender documents of a Mini-Competition.
3. Purchase Order after Mini-Competition

After a Mini-Competition has been conducted, Buyer may conclude a Purchase Order with the selected Supplier.

1. Obligation to Sell and to Purchase
  1. By a Purchase Order, the Seller shall sell and deliver the Product to the Buyer and shall procure the Buyer title of ownership in the Product. The Product shall be free from Defects.
  2. By a Purchase Order, the Buyer shall pay the Seller the agreed purchase price and shall accept delivery of the Product.
  3. Place of performance under any Purchase Order is the Installation Site.

The Product
1. General Provisions
  1. Seller shall produce and shall deliver the Product in accordance with this Contract and the relevant Purchase Order and finally negotiated Appendix 3 (PV Modules Quality Assurance Requirements) to be included as an Annex to the Purchase Order. The Product shall as a minimum meet the Product Guarantees set out in the Purchase Order and shall be free of Defects.
  2. The Product shall meet the applicable local standards and requirements on IEC, TUV, UL and BIS (where applicable) certifications according to applicable Law at the Installation Site.
  3. If the Buyer receives funding, the supplier is obliged to comply with the applicable country-specific funding requirements and is also obliged to provide the necessary evidence and documentation according to the applicable funding requirements.
2. Hardware

Design

- - 1. The Seller shall have the sole responsibility and accountability for the proper design of the Product.
    2. Technical specifications issued by the Buyer are of functional nature only and shall not be construed as shifting any responsibility/accountability for the design of the Product from the Seller to the Buyer.
    3. Neither approvals, consents, comments or complaints by the Buyer nor the absence of such approvals, consents, comments or complaints by the Buyer shall release the Seller from the responsibility and accountability for the design of the Hardware.

Manufacturing

- - 1. Seller shall manufacture the Product in accordance with a documented production process.
    2. Prior to starting the manufacturing of the Product, Seller shall inform and request Buyer’s approval for the specification, production line and for any changes in materials used.
    3. Buyer has the right to select samples of the Product and to perform tests and inspections as set out in Appendix 3 (PV Modules Quality Assurance Requirements).
    4. Details are set out in Appendix 3 (PV Modules Quality Assurance Requirements).

Quality and Quality Management

- - 1. The Product shall, as a minimum:
      1. be new, unused and produced at the production/manufacturing line approved by the Buyer,
      2. meet the Product Guarantees set out in the Purchase Order,
      3. shall be free of Defects,
      4. comply with the applicable local Law of the Installation Site, and
      5. meet the requirements on IEC, TUV, UL and BIS (where applicable) certifications.
    2. During the term of this Contract and as long as there are non-completed Purchase Orders, Seller shall maintain the qualifications demonstrated during the pre-qualification phase of the tender that led to the conclusion of this Contract. Buyer may at all times demand from Seller to produce evidences that Seller maintains a suitable quality management system and complies with it.
    3. The Buyer and/or third parties authorized by the Buyer shall have the right to check compliance with the quality assurance measures at any time at the Seller’s premises and production facilities including those of subcontractors. The Seller shall be obliged to grant access to its offices and production facilities for the purpose for performing tests, inspections and measurements and for auditing the quality assurance systems and their compliance. The seller must contractually oblige his subcontractors to grant Uniper appropriate access and opportunities for inspection, test and auditing measures at their premises and production facilities in the manner described above.
    4. If the Buyer is hindered or delayed in the performance of tests, inspections and measurements in the production facilities, as well as in the auditing of the quality assurance systems, due to insufficient support by the Seller or its subcontractors, or due to deviations contrary to the communicated production and delivery status (e.g. dates cancelled at short notice by the Seller, non-availability of components, no access to production facilities, etc.), all expenditures incurred by the Buyer in connection with such hindrance or delay shall be borne by the Seller.
    5. The performance or non-performance of quality assurance and quality control activities by or on behalf of the Buyer shall not release the Seller from its sole responsibility and accountability for the quality of the Product.

Improvements / Up-dates

During the term of this Contract Seller shall inform Buyer in good time about any design improvements or Product updates that are made prior to delivery of the Product.

1. Product Information, Documentation
  1. All Product information offered by the Seller in the Purchase Order shall be binding on the Seller.
  2. Seller shall provide all installation, safety, maintenance, process and operator’s manuals in relation to the Product as and when required. Such documentation shall be provided in English and, if so agreed in the Purchase Order, also in another language.
  3. All documentation shall be provided in English. In addition, certain documentation described in the Purchase Order shall be in the language required for any regulatory purpose.
  4. The examination of documents or documentation by the Buyer without any comments or complaints does not release the Seller from the responsibility and accountability for the correctness and completeness of the documents and documentation. The same applies in case of Buyer consenting to or approving any documents or documentation.
2. Take-back Obligation; Recycling
  1. Unless expressly agreed otherwise in the Purchase Order, the Seller shall be obliged to take defective Products back and shall be responsible for the proper recycling of the Product in accordance with the applicable Law. On Buyer’s request, Seller shall also take back (defective and non-defective) surplus Products. The Seller's obligation to take back and properly recycle the delivered products shall also apply in the event of the dismantling of solar systems, their modernisation, refurbishment or renewal as well as for any replacement of solar modules or their individual components for other reasons, unless expressly agreed otherwise in the Purchase order.
  2. Seller shall comply with the respective applicable Law on waste treatment and recycling. In particular, Seller shall comply with any registration and information duties imposed by DIRECTIVE 2012/19/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 on waste electrical and electronic equipment (WEEE) and its respective implementation into national laws such as the "Electrical and Electronic Equipment Act of 20 October 2015 (BGBl. I p. 1739), as last amended by Article 23 of the Act of 10 August 2021 (BGBl. I p. 3436)" in Germany.
  3. All costs in connection with the taking-back and recycling of the Product shall be borne by the Seller. However, but without prejudice to Buyer’s rights in case of a Defect, Buyer shall bear the costs for deinstalling the Product and for providing it to the Seller for collection on the Installation Site.
  4. If Buyer is the owner of the portion of the Product to be taken back by the Seller, title of ownership to the relevant portion of the Product shall pass from the Buyer to the Seller at the point in time when the Product is lifted for loading on Seller’s means of transport.
  5. Seller shall, within [30] Days after collection of the Product, refund the respective portion of the Purchase Order Price for all undamaged surplus Product taken back by Seller.
  6. If the EU DIRECTIVE 2012/19/EU mentioned in clause 3.4.2 above does not apply in the country where the Installation Site is located, Seller and Buyer herewith agree that Seller shall have an obligation to take back and recycle the Product as set out in this DIRECTIVE 2012/19/EU by virtue of this Contract.
3. Product Guarantees
  1. The Product shall achieve the Product Guarantees agreed in the relevant Purchase Order.
  2. If the Product does not achieve the Product Guarantees, Seller shall have the rights and remedies attached to such non-achievement set out in the Purchase Order in addition to the rights and remedies set out in this Contract. .
  3. Unless otherwise agreed in the order, the supplier grants a product guarantee of at least 10 years for defects in the modules and a 20-year performance guarantee for the modules, each covered by appropriate liability insurance. With the performance guarantee, the supplier must take out warranty and damage compensation insurance against excessive loss of performance of the PV modules and maintain it throughout the guarantee period.
4. Tests and Inspections
  1. Unless otherwise agreed in this Contract, any test or inspection is for the benefit of the Buyer only and the fact that Buyer has or has not conducted any such test or inspection shall not deprive the Buyer of any rights or remedies under this Contract or a Purchase Order.
  2. Buyer may perform all or some of the tests, auditing and inspections on the Product prior to and after delivery as set out in Appendix 3 (PV Modules Quality Assurance Requirements). Seller shall, at Seller’s own cost and expense, provide the equipment and the personnel needed for the purpose of tests and inspections in accordance with Appendix 3 (PV Modules Quality Assurance Requirements).
  3. In addition to the tests and inspections set out in Appendix 3 (PV Modules Quality Assurance Requirements), Buyer may conduct other or further tests and inspections on the Product. The Seller shall support such additional tests and inspections with samples of the Product and with equipment and personnel available at the premises of the Seller. Unless stated otherwise in this Contract or in a Purchase Order, the costs for such equipment and personnel shall be borne
    - 1. by the Buyer, if the additional tests and inspections prove that the Product is in accordance with the Purchase Order;
      2. by the Seller, if the additional tests and inspections prove that the Product is not in accordance with the Purchase Order.

Transport and Shipment
1. Delivery Dates
  1. Subject to clause 4.1.2 below, delivery date(s) agreed in the Purchase Order are binding on the Seller and on the Buyer. If no delivery date(s) is/are agreed in the Purchase Order, Buyer and Seller shall agree on a reasonable delivery date(s) after conclusion of the Purchase Order.
  2. Buyer shall have the right to instruct to postpone the respective delivery date(s), subject to the following:
    - 1. if Seller receives the instruction to postpone latest thirty [30] Days before the respective scheduled delivery date(s), Buyer shall not incur any liability opposite the Seller;
      2. if Seller receives the instruction to postpone later than thirty [30] Days before the respective scheduled delivery date(s), Seller shall be entitled to claim reimbursement of expenditures (“Aufwendungen”) in accordance with clause 7.4. [Variation Claim].
  3. Seller shall continuously inform the Buyer about the status of each transport.
2. Delivery Terms
  1. Delivery terms for all deliveries shall be “DDP Installation Site, Incoterms 2020”.
  2. Unloading the Product from the means of transport at the Installation Site shall be Seller’s obligation.
3. Prohibited Delivery Routes and Shipping Companies

No shipping companies and/or vessels listed as grey or black by “The Paris Memorandum of Understanding on Port State Control” (https://www.parismou.org/detentions-banning/white-grey-and-black-list) shall be chartered for the performance of this Contract or any Purchase Order concluded thereunder.

1. Partial Deliveries

Unless agreed otherwise in the Purchase Order, partial deliveries shall be allowed.

1. Packing and Marking

Seller shall ensure that packing of each consignment complies with applicable laws and regulations and industry standards and is proper to prevent damage to the Product during loading, transportation, unloading and storage.

1. Instructions by Buyer

Buyer has the right to instruct the Seller to put (portions) of the Product into interim storage in warehouses denoted by the Buyer. Such instruction shall not change the place of delivery according to clause 4.2 [Delivery Terms]. In this case, the Seller is entitled to claim reimbursement of the additional expenditures incurred.

Collaboration, Assistance, Other Duties
1. Collaboration and Assistance

It is understood that in negotiating, exercising any rights and performing any duties, the Parties shall act in good faith and in a reasonable manner, shall be accommodative and practical, and shall provide such cooperation as may be reasonably necessary to ensure the successful completion of the purchase transactions contemplated herein (subject to the signing of respective Purchase Orders.

1. Hazardous Materials

Seller shall treat hazardous materials and chemicals in accordance with the Law.

1. Permitting

The Seller shall, free of charge, co-operate and reasonably assist the Buyer with information and documents required to support the Buyer in the permitting processes with authorities in the countries where the Installation Site is located for the installation and operation of the Product.

1. Seller’s Representative
  1. In the Purchase Order, Seller shall nominate a representative who is entitled and at all times sufficiently authorized to make binding representations and declarations for and on behalf of the Seller and to receive notices and other communications from the Buyer.
  2. Seller’s representative shall be (deemed) authorized to receive on Seller’s behalf proceedings issued out of courts or arbitral tribunals in any actions or proceedings arising out of or in connection with the relevant Purchase Order.
  3. Seller’s representative shall have its business seat / presence in a Member State of the European Union.
2. Other Duties
  1. Seller and Buyer shall always act in good faith while discharging their obligations under a Purchase Order.
  2. Seller and Buyer shall observe a general duty of due care and diligence while performing under a Purchase Order.
  3. Seller shall comply with applicable Law.

Transfer of Risk and Title

The risk of loss and damage to the Product passes from the Seller to the Buyer after unloading of the Product at the Installation Site in accordance with clause 4.2 [Delivery Terms].

Subject to deviating provisions in this Contract or in a Purchase Order, title of ownership to the Product passes from Seller to the Buyer upon delivery in accordance with clause 4.2 [Delivery Terms].

Variations to the Scope of Supply
1. General Provisions on Variations
  1. After conclusion of a Purchase Order, any modifications to the Scope of Supply constitutes a variation.
  2. Modifications to the Product that are necessary for the Product to fulfill the requirements of this Contract and the relevant Purchase Order and for passing applicable quality assurance tests do not constitute a variation and shall not entitle the Seller to a variation claim.
2. Agreed Variations
  1. Buyer and Seller may at any time agree on a variation to the Scope of Supply.
  2. The agreement on a variation shall be recorded in writing, in order to be valid.
  3. Buyer’s approval of or consent to a variation shall not relieve the Seller from any liability.
3. Necessary Variations
  1. In case of a change in Law, the Seller shall be obliged to implement all variations to the Scope of Supply that are necessary for the Scope of Supply to comply with the applicable Law at the Installation Site at the time of delivery.
  2. Seller shall without undue delay inform the Buyer about all necessary variations that Seller intends to implement.
4. Variation Claim
  1. In case of a necessary variation according to clause 7.3 [Necessary Variations] Seller shall be entitled to claim adjustment of the Purchase Order Price and/or adjustment of the delivery dates affected by the necessary variation, unless the necessary variation is minor. A minor variation is a variation that does not impact the delivery dates and the expenditures to be incurred by Seller for the implementation of such variation are insignificant compared to the relevant Purchase Order Price.
  2. Seller has to notify Buyer of Seller’s variation claims in writing and latest when submitting the final invoice to Buyer. Variations claims notified after submitting the final invoice shall be precluded and Seller shall have no right to legally enforce such belated variation claims. However, Seller shall be allowed to further detail variation claims that have duly been notified in time.
  3. Seller and Buyer shall attempt to settle all variation claims by negotiation and agreement. If the Parties are unable to settle a variation claim amicably, each Party shall be free to start dispute resolution procedures in accordance with clause 16.2 [Dispute Resolution]. A dispute on variation claims shall not entitle the Seller to retain the manufacturing and delivery of the Product or otherwise to suspend its performance.
  4. The preceding provisions of this clause 7.4 [Variation Claim] shall apply mutatis mutandis where this Contract gives Seller a right to make a variation claim.
Price and Payment
1. Price

The Price of the Product will be defined in the relevant Purchase Order.

1. Payment Terms
  1. The Purchase Order shall set out the applicable payment terms.
  2. Unless agreed otherwise in the Purchase Order, any payment shall be due after [60] Days after receipt of an auditable invoice that is supported by no less than the following documents:
    - 1. a proper invoice in digital and paper form,
      2. a certificate of the country of origin,
      3. the original document of the clean On Board Bill of Lading, and
      4. the flash test report of the Product for which payment is sought.
  3. Unless agreed otherwise in the Purchase Order, any payments prior to delivery of the Product shall fall due only if Seller has submitted to Buyer a directly enforceable advance payment bank guarantee covering the gross amount of the invoice for which payment is claimed.
2. Taxes, Customs Duties, Levies
  1. Unless otherwise agreed, the prices specified in this Contract and in the Purchase Orders agreed thereunder, shall include all public and social security charges, duties, levies and taxes determined by the applicable Law and authorities, with the exception of value added tax. Value added tax shall be clearly marked on each invoice and added to the prices in accordance with the then current regulations.
  2. Customs duties and export/import taxes shall be included in the prices in a Purchase Order or deemed to be agreed in accordance with clause 4.2 [Delivery Terms].

Financial Guarantees
1. General Provisions
  1. Financial guarantees that the Seller is obliged to submit to the Buyer shall fulfill all of the following conditions:
    - 1. The financial guarantee shall be an unconditional, irrevocable and directly enforceable payment guarantee from an internationally reputable bank or insurance company having their seat of business in a member state of the European Economic Area,
      2. the bank or insurance company shall have a minimum rating of BBB+ from Standard & Poors or Baa1 from Moody's (the “Required Credit Rating”), and
      3. the financial guarantee shall be on terms and conditions that the Buyer and Seller have agreed upon (if applicable).
  2. The Buyer has the right to approve in advance each financial guarantee that Seller intends to submit. Approval of a financial guarantee shall not be unreasonably denied or delayed.
  3. If any financial guarantee is due to expire prior to the date upon which the Buyer reasonably anticipates that the Seller will no longer be obliged under the relevant Purchase Order to maintain such instrument in place, the Seller shall procure the replacement of expiring instrument on the terms set out in this Contract prior to the date falling [15] Days before the expiry of the relevant instrument in an amount equal to the then unused portion of the relevant instrument. The replacement instrument shall take effect no less than [5] Days prior to the expiry of the instrument which is being replaced.
  4. If any bank or insurance company having issued a financial guarantee
    - 1. falls below the Required Credit Rating, or
      2. is sanctioned by the United States of America, the European Union or the United Kingdom of England and Wales, or
      3. whose senior management is accused and convicted of violations of applicable anti-bribery and anti-corruption Law,

the Seller shall procure the replacement of the relevant instrument on the terms set out in this Contract within [15] Days after Buyer so requests.

- 1. Any breach of clauses 9.1.3 or 9.1.4 entitles the Buyer to make a written demand on the issuer of the financial guarantee for the full amount available under the relevant instrument.
  2. If a financial security is called solely as a result of a breach of clauses 9.1.3 or 9.1.4 and if the breach is, in the reasonable opinion of the Buyer, adequately remedied by the issue of a new or amended guarantee or by the implementation of other arrangements satisfactory to the Buyer, the Buyer shall repay to the Seller those amounts, if any, that the Buyer has received on the calling of the relevant guarantee.
  3. Unless agreed otherwise in the Purchase Order, a financial security ceases to have effect and shall be returned to the Seller, when the purpose of the financial security (“Sicherungszweck”) has ceased to exist.
1. Seller Parent Company Guarantee

Seller shall provide a parent company guarantee in accordance with the specimen attached as Appendix 3 (Specimen Seller’s Parent Company Guarantee).

Business Ethics and Compliance
1. General Provisions
  1. Seller is aware of and acknowledges that Uniper is a state-owned entity and as such is especially committed to establish, maintain and control compliance with high ethical standards and sustainability in all its undertakings and supply chains.
  2. Seller shall at all times comply with Uniper’s Supplier Code of Conduct attached hereto as Appendix 2 (Uniper’s Supplier Code of Conduct). With regard to personnel that is assigned to work under a Purchase Order, Seller shall ensure that Seller’s personnel and subcontractors as well as subcontractors’ personnel are familiar with and comply with Uniper’s Supplier Code of Conduct.
  3. Seller declares, and Buyer relies on that declaration, that to Seller’s best knowledge at the date of conclusion of this Contract, neither Seller, nor Seller’s management personnel nor Seller’s employees, nor any other person acting on behalf of the Seller, are violating any applicable anti-bribery or anti-corruption Laws,have used or are using child labor or forced labor.Without prejudice to any other rights or remedies which Buyer may have, any breach of this declaration shall be a breach which entitles Buyer to serve a notice of termination for breach by Seller in accordance with the relevant provisions of this Contract.
  4. Seller shall have policies and procedures in place to prevent bribery and corruption and the use of child labor and forced labor by Seller, its subcontractors and the group of companies they belong to.
  5. Seller shall perform the contract consistent with international recognized human rights conventions to prevent adverse effects on human rights or the environment. Adverse effects on human rights or the environment occur at least if the value chain involves the following:
forced / child labor or the employment of persons in forced / child labor;
slavery in any form (including extreme economic or sexual exploitation and humiliation);
disregarding occupational safety and health obligations applicable under the law of place of employment if this gives rise to the risk of accidents at work or work-related health hazards;
restriction of freedom of association and collective negotiation in accordance with applicable law of the place of employment;
discrimination in employment, for example on the grounds of national and ethnic origin, social origin, health status, disability, sexual orientation, age, gender, political opinion, religion of belief unless this is justified by the requirements of the employment;
withholding an adequate living wage;
causing any harmful soil change, water pollution, harmful noise emission or excessive water consumption that significantly impairs the natural bases for the preservation and production of food, denies a person access to safe and clean drinking water, makes it difficult for a person to access sanitary facilities or destroys them or harms the health of a person;
unlawful eviction and unlawful taking of land, forests and waters in the acquisition, development or other use of land, forests and waters, the use of which secures the livelihood of a person;
hiring or use of private or public security forces for the protection of the enterprise`s project if, due to a lack of instruction or control on the part of the enterprise, the use of security forces is in violation of the prohibition of torture and cruel, inhumane or degrading treatment, damages life or limb or impairs the right to organise and the freedom of association;
use of mercury, mercury compounds or mercury-added products, or chemicals pursuant to Art. 3 (1) (a) and Annex A of the Stockholm Convention on Persistent Organic Pollutants (2001), for the production of goods;
handling, collecting, storage or disposal of waste in a manner that is not environmentally sound;
export of hazardous waste contrary to the Basel Convention (1989).
- 1. Seller shall inform Buyer as soon as possible, if Seller becomes aware of any circumstances that give rise to reasonable suspicion that a person acting for or on behalf of the Seller under this Contract or any Purchase Order concluded thereunder, has committed actions that go against the afore-stated Seller’s declaration pursuant to section 10.1.3 or an adverse effect on human rights or the environment as defined in section 10.1.5.
  2. Seller is aware that the European Union has initiated a legislative process for a new Law on corporate due diligence and corporate accountability of enterprises regarding their supply chains. Seller shall cooperate with and assist Buyer to ensure that Buyer can comply with Buyer’s respective duties under such new Law when it is enacted and if it is applicable to the Buyer.
From this background, Seller must, if an adverse effect on human rights or the environment as defined in section 10.1.5 is discovered in its own business area or at a direct supplier in connection with this contract, without undue delay, take appropriate remedial action to prevent, end or minimize it. Seller will have to: (1) take all measures that can reasonably be required of the Seller to prevent the adverse effects; (2) where prevention is not possible, minimize these adverse effects as much as possible, undo them, and remedy where appropriate; and (iii) where adequate minimization is not possible, refrain from carrying out the activity or end the relationship.
In its own business area in Germany, the remedial action shall bring the violation to an end. In the own business area abroad, the remedial action shall usually bring the violation to an end. Seller must draw up and implement a concept for ending or minimizing the violation in alignment with the Buyer without undue delay. The concept must contain a concrete timetable.
If the adverse effect on human rights or the environment at a direct supplier is such that the Seller cannot end in the foreseeable future, Seller must draw up and implement a concept for ending or minimizing the violation as aforementioned (10.1.7 lit.b).
The termination of this contract is only required if the adverse effect on human rights is assessed as very serious, b. the implementation of the measures developed in the concept does not remedy the situation after the time specified in the concept has elapsed, c. the Seller has no other less severe means at its disposal and increasing the ability to exert influence has no prospect of success. The mere fact that a state has not ratified human rights conventions or has not implemented it into its national law does not result in an obligation to terminate the business relationship.
1. Compliance Audit
  1. From the date of conclusion of this Contract for a period ending [5] years after the date of the final invoice of the last Purchase Order, the Buyer shall have the right at all reasonable times upon at least [5] Days’ written notice to inspect and audit all Seller’s company records, books and accounts regarding the Scope of Supply prepared by or in the possession or control of the Seller at the place where such records, books and accounts are normally kept, solely for the purposes of verifying Seller’s compliance with this clause 10 [Business Ethics and Compliance].
  2. Seller shall see to it that Seller passes the audit rights stipulated in clause 10.2.1 on to its subcontractors, so that Buyer can conduct compliance audits at Seller’s subcontractors.
  3. If any such audit identifies any facts that rise reasonable suspicion that Seller or somebody acting for or on behalf of Seller, has violated any obligation, duty or standard set out herein, the Buyer shall have all rights under this Contract or at Law to claim indemnification from Seller for all resulting losses and damages incurred and/or to terminate all or some Purchase Orders and/or this Contract and/or to otherwise sanction Seller’s non-compliance.

10.3 Anti-Bribery, Anti-Corruption and Anti-Money Laundering

10.3.1 Each [Party] agrees that in connection with this [Agreement], they will each respectively comply with all applicable laws, rules, regulations, decrees and/or official government orders of the EU, any EU member state (including applicable OECD regulations), the UN, the UK or the US relating to anti-bribery, anti-corruption and anti-money laundering [(“Applicable Laws”) / (“Applicable ABC Laws”)] and that they shall each respectively take no action which would subject the other to fines or penalties under the [Applicable Laws / Applicable ABC Laws].

10.3.2 Each [Party] represents and warrants that it shall not, directly or indirectly, in connection with this [Agreement]:

10.3.2.1 make, offer, receive or otherwise solicit any form of financial payment;

10.3.2.2 offer or receive any inducement or enticement, of whatever nature; or

10.3.2.3 attempt to unduly influence the proper execution of the duties of any public or government official (whether an elected official or employed civil servant of the state);

for the purpose of securing any financial gain or other advantage (including the disadvantage of any other party) either for themselves or any third party, in breach of the Applicable Laws from time to time in force.

10.3.3 Each Party shall indemnify and hold harmless the other Party for any and all claims, damages, losses, costs or expenses arising from or connected to a violation of any of the above representations and warranties in this section. The provisions of this clause 1.3 are intended by the Parties to survive the expiry or termination of this Agreement, howsoever arising.

Rights and Remedies
1. General Provisions
  1. Seller‘s and Buyer‘s rights and remedies, whether contractual or non-contractual, shall exclusively be governed by the Governing Law only, subject to the following provisions of this clause 11 [Rights and Remedies].
  2. Unless expressly agreed otherwise in the following provisions of this clause 11 [Rights and Remedies], rights and remedies granted by the Governing Law may be exercised in addition to or instead of the rights and remedies granted to a Party in this Contract. However, rights to cancel this Contract, or parts thereof, such as rescission (”Anfechtung”), avoidance of Contract (“Rücktritt”) and termination (“Kündigung”) can only be exercised alternatively.
2. Delays

General

- - 1. If a Party (the “defaulting Party”), without legal reason, does not fulfill its duty or obligation at the time when such duty or obligation was due to be fulfilled, the defaulting Party shall be in delay, if the defaulting Party, without legal reason, does not fulfill the relevant duty or obligation within a reasonable deadline notified by the other Party.
    2. In case of such delay and subject to the following provisions of this clause 11.2 [Delays], the defaulting Party shall compensate the other Party for all resulting losses and damages in accordance with clause 12 [Liability].

Delayed Payments

If Seller or Buyer is in delay with an amount that is due for payment, a default interest of [5] percent per annum on all amounts due shall apply.

Delayed Delivery

- - 1. The Seller shall automatically be in delay of delivery, without any notice by the Buyer being required, if the Seller, without legal reason, has not completed the delivery on the delivery date set out in the relevant Purchase Order.
    2. The Seller shall inform the Buyer without undue delay, if the Seller becomes aware of circumstances that, to Seller’s reasonable judgement, will likely delay a delivery.
    3. Seller shall pay the Buyer the amount of delay liquidated damages or delay penalties agreed in the Purchase Order. If nothing to that end is agreed in the Purchase Order the following rates for liquidated damages shall apply: 0,15% of the net Purchase Order Price per commenced Day of delay from the first [1st] Day of delay onwards, but no more than 15% of the net Purchase Order Price.

Delayed Acceptance of Delivery

- - 1. The Buyer shall be in delay of acceptance of delivery, without any notice by the Buyer being required, if the Buyer, without legal reason, has not accepted a delivery duly made on the delivery date set out in the relevant Purchase Order.
    2. The Buyer shall not be in delay of acceptance of delivery, if the number of Product arriving at the Installation Site exceeds Buyer’s capability of safe handling and storing the Product on the Installation Site.
    3. The Seller is entitled to claim reimbursement of expenditures, if Seller places the Product in an interim storage. In addition, Seller shall be entitled to claim payment of reasonable advance payments to be made by the Buyer for the purpose of covering foreseeable expenditures. If the Seller claims advance payments, Seller shall, at Buyer’s cost, procure the Buyer an advance payment bond. Buyer is entitle to withhold advance payments until submission of the advance payment bond by the Seller.
    4. If Buyer is in delay of acceptance and if the Seller has stored the Product in an interim storage for more than [90] Days after the scheduled delivery date, Seller is entitled to claim
      1. the Product to be collected from the interim storage by the Buyer in due course, or
      2. that the Buyer concludes a storage contract with the operator of the interim storage facility so that the Seller is relieved from its obligations to warehouse the Product.
    5. If Buyer is in delay of acceptance of a delivery, placing the Product into interim storage by the Seller shall constitute “delivery”.

Other Delays

- - 1. If a Party, without legal reason, does not fulfill any duty or obligation other than those set out in clauses 11.2.1 to 11.2.4 above, at the time or during the period when such duty or obligation was due to be fulfilled, the defaulting Party shall be in delay, if the defaulting Party, without legal reason, does not fulfill the relevant duty or obligation within a reasonable deadline notified by the other Party.
    2. In case of such delay, the defaulting Party shall compensate the other Party for all resulting losses and damages.
1. Defects

General

- - 1. If there is a Defect in the Product during the defect liability period, Buyer shall be entitled to the rights and remedies for Defects under the Governing Law and may:
      1. claim make good (“Nacherfüllung”) as further detailed in clause 11.3.2 [Make Good];
      2. declare the avoidance of contract (“Rücktritt”) in respect of the relevant Purchase Order as further detailed in clause 11.7 [Avoidance of Contract] or reduce the Purchase Order Price; and
      3. claim damages (“Schadensersatz”) as further detailed in clause 12.2 [Damages, Liquidated Damages and Penalties] or claim reimbursement of futile expenditures (“vergebliche Aufwendungen”).
    2. A Defect is notified by the Buyer to the Seller in due time, if the Seller receives Buyer’s notification of a Defect prior to the end of the Defect Liability Period.
    3. A Defect is properly notified, if the notification describes observations made by the Buyer from which the occurrence of a Defect can be reasonably inferred.
    4. Having received a Defect notification, the Buyer may request the Seller to inspect the Product at the Installation Site and to search for the causes of the Defect. If such search reveals,
      1. that there is no Defect, Seller shall be entitled to claim reimbursement of expenditures for the inspections and investigations on the Product carried out;
      2. that there is a Defect, Buyer may exercise Buyer’s rights and remedies set out in clause 11.3.1.1 above;
      3. that it remains unclear if a Defect subsists, Seller and Buyer shall negotiate in good faith and either Party may resort to dispute resolution in accordance with clause 16.2 [Dispute Resolution].
    5. The Parties agree that § 442 (1) BGB shall not apply, i.e. the Buyer shall not have forfeited its rights and remedies for Defects, even if Buyer was aware, or should have been aware, of a Defect at the time when the Purchase Order was concluded.
    6. The Parties agree that § 377 HGB shall not apply, i.e. there is no duty on the Buyer to timely inspect the Product upon delivery

Make Good

- - 1. The obligation to make good can be fulfilled either by repair of the defective portion of the Product or by replacement of the defective portion of the Product with newly manufactured Products.
    2. The Seller shall be entitled to select the suitable manner of making good with due consideration of Buyer’s reasonable interests of a reliable and stable operation of the Installation Site.
    3. The Seller shall bear the expenditures necessary for the purpose of making good, including transport, travel, labour and material costs. In addition, Seller shall bear all expenditures associated with the de-installation of the defective Product and the re-installation of the newly produced Product. All deliveries of replacement Product shall be made DDP (Installation Site) Incoterms 2020.
    4. If Buyer is the owner of the defective portion of the Product to be taken back by the Seller, title of ownership to the relevant portion of the Product shall pass from the Buyer to the Seller at the point in time when the defective Product is dismantled from the rack.

Serial Defect

- - 1. If the same or similar Defect occurs in at least [3] per cent of the produced Hardware, this shall constitute a “Serial Defect”.
    2. In case a Serial Defect is discovered, the Buyer may request the Seller to inspect all Hardware on the Installation Site and tol carry out an in-depth cause analysis at Seller’s own cost. The Seller shall inform the Buyer of the results within [30] Days after discovery of the Serial Defect. Furthermore, Seller shall propose to Buyer suitable measures to prevent the recurrence of the Serial Defect.
    3. If, during such inspection, the Serial Defect is found in another Hardware or if the cause analysis shows that the Serial Defect is probably inherent in [20] per cent or more of the Hardware, Seller shall make good all Hardware. However, such obligation to make good does not apply in respect of Hardware modules that the Seller can prove are free of the Serial Defect.
    4. In all other respects, the provisions of clause 11.3 [Defects] shall apply.

Defect Liability Period

- - 1. The defect liability period shall be the longer period,
      1. as determined in the Purchase Order, or
      2. ten [10] years.
    2. The defect liability period shall,
      1. start on the delivery of the Product or, if partial deliveries are allowed under a Purchase Order, on delivery of the last consignment of the Product for all deliveries made under the relevant Purchase Order;
      2. stop and start from the beginning after making good of a Serial Defect has been completed.
    3. If the Buyer resells the Product to an End Customer, the defect liability period in accordance with clause 11.3.4.1 above shall not end prior to the date which is [90] Days after the end of the defect liability period applicable to Buyer’s defect liability opposite the End Customer.
1. Product and Performance Guarantees

General

- - 1. The Product Guarantees given under this Contract or under a Purchase Order are guarantees within the meaning of § 443 BGB.
    2. Rights and remedies for Defects granted by the Seller in respect of these Product Guarantees shall be distinct and separate from the rights and remedies set out in this clause 11.3 [Defects]. Buyer shall be entitled to exercise the rights and remedies for Defects given for Product Guarantees in addition to the rights and remedies set out in this clause 11.3 [Defects].
    3. Rights and remedies for Defects granted by the Seller in respect of Product Guarantees shall be time barred (“verjährt”) after the end of the applicable defect liability period according to clause 11.3.4 [Defect Liability Period], unless a longer period has been agreed in the individual order.
    4. The supplier grants additionally a performance guarantee of the PV-modules of at least 20 years, unless a longer period has been agreed in the individual order.

All guarantees given by the Seller according to 11.4. shall be covered by appropriate liability insurances.

Bifacial Product Guarantee

- - 1. If the Product contains bifacial PV modules, then as a minimum and in addition to any other Product Guarantees given in the Purchase Order, the Product Guarantee set out in the following clause 11.4.2.2 is agreed and shall be implied in the relevant Purchase Order regardless of whether or not any reference to this clause 11.4.2 [Bifacial Product Guarantee] is being made in the relevant Purchase Order.
    2. If the Product contains bifacial PV modules, the bifaciality of each PV module defined in the relevant Purchase Order shall be at minimum the defined bifaciality for the entire Defect Liability Period.
    3. If the Product contains bifacial PV modules,

the bifaciality of the module shall be defined on the datasheet,

the bifaciality shall be defined as the ratio of rear-side power output to the front-side power output under Standard Test Conditions (STC) as set out in Appendix 3 (PV Module Quality Assurance Requirements): Prear,STC / Pfront,STC,

the rear-side power output Prear,STC and the front-side power output Pfront,STC shall be measured according to the methodology as described in the norm IEC TS 60904-1-2:2019.

1. Extension of Time, Adjustment of Dates

Whenever reference is made to “extension of time”, “adjustment of dates/time lines” or similar in this Contract, the extension of time/adjustment of dates actually granted shall be reasonable, taking the legitimate interests of Seller and Buyer into account.

1. Reimbursement of Expenditures

Whenever reference is made to “reimbursement of expenditures” (“Aufwendungen”) in this Contract, the term expenditure shall be interpreted according to the Governing Law and shall comprise only reasonable expenditures, but no anyhow costs (“Sowieso-Kosten”).

1. Avoidance of Contract („Rücktritt“)
  1. Whenever this Contract or the Governing Law grants Seller or Buyer a right to avoid the contract (“Rücktrittsrecht”), such right can only be exercised in respect of a Purchase Order, however not in respect of this Contract.
  2. With regard to §§ 346 ff BGB, the Parties agree that neither Party shall be obliged to return any emoluments (“Nutzungen”) taken and in consequence thereof shall not be obliged to compensate the other Party for the value (“Wertersatz”) of any emoluments taken or not taken.
2. Retention and Set-Off
  1. Unless otherwise agreed in this Contract and subject to the following provisions, each Party may exercise rights to set-off (§§ 387 ff. BGB) and retention (§§ 273, 320 ff. BGB) in accordance with the Governing Law.
  2. Seller shall not be allowed to retain any Documentation.
  3. Retention rights and set-off rights can only be exercised with and against claims that have arisen under the same Purchase Order; hence retention and set-off with and against claims having arisen under different Purchase Orders or otherwise shall not be allowed.
3. Deviating Terms and Conditions

Deviations from this clause 11 [Rights and Remedies] to the detriment of the Buyer shall only be allowed, if so expressly agreed in a Purchase Order by way of specific reference to the clause that shall be deviated from.

Liability
1. General Provisions on Liability

Seller and Buyer shall each be liable for their own fault (“Verschulden”) in accordance with § 276 BGB as well as for the fault of their respective Vicarious Agents in accordance with § 278 BGB.

1. Damages, Liquidated Damages and Penalties

Damages („Schadensersatz“)

Whenever a Party has a right to claim damages under or in connection with this Contract or a Purchase Order, the heads of damage and the amount of damages that can be claimed shall be determined by the Governing Law. Where the Governing Law is flexible and allows for deviations by the this Contract, the following provisions of this clause 12 [Liability] shall apply.

Liquidated Damages and Penalties

- - 1. Payment of liquidated damages or penalties agreed in a Purchase Order shall be the sole and exclusive remedy of a Party for the other Party’s default which such liquidated damages or penalties are intended to sanction. However, if the event for which the Parties have agreed payment of liquidated damages, constitutes a Defect, Buyer shall have the right to claim make good first and prior to Seller having the right to discharge its obligation by paying liquidated damages.
    2. If penalties are agreed in a Purchase Order and have fallen due, Seller and Buyer herewith reciprocally waive their rights to claim a reduction of a penalty (§ 343 BGB).
    3. Payment of delay liquidated damages or delay penalties does not relieve the Seller from its duty to complete the Scope of Supply.
    4. If liquidated damages are agreed in a Purchase Order and have fallen due, Seller and Buyer herewith reciprocally waive their rights to claim that the claimant has not incurred a damage or loss or that the damages and losses incurred by the claimant are lower than the amount of liquidated damages. Seller and Buyer further agree that any liquidated damages agreed in a Purchase Order are a fair and reasonable pre-estimate of the damages likely to be sustained by a Party as a result of the other Party’s default in fulfilling the relevant obligation that has been made subject to liquidated damages.
    5. If agreed liquidated damages or penalties are declared void by a competent person, court or institution to whom/which the Parties have referred a dispute for resolution, each Party shall be entitled to claim damages according to the Governing Law.
1. Limitation of Liability
  1. Under any project, the total aggregate liability of a Party to the other Party shall not exceed the total aggregate net Purchase Oder Prices of all Purchase Orders, including the net value of all agreed variations, at the time the damage or loss has occured. This limitation does not apply
    - 1. if the Governing Law does not allow for such limitation, for example, but not limited to

in case of damages are caused by intent (“Vorsatz”), § 276 (3) BGB,

in case of damages to life, body or health of a person, § 309 Nr. 7 BGB;

in case of a negligent breach of a fundamental condition of the contract ("wesentliche Vertragspflicht");

- - - 1. in case of gross negligence;
      2. in case of a breach of confidentiality obligations set out in clause 17.3 [Confidentiality];
      3. in case of a breach of compliance obligations set out in clause 10 [Business Ethics and Compliance];
      4. in cases where a Party can claim indemnification against third part claims from the other Party (“Freihaltungs-/Befreiungsansprüche von Verbindlichkeiten”), including, but not limited to, in the cases described in clause 12.5 [Indemnity for Intellectual Property Claims];
      5. in case of a Product Liability Claim in accordance with clause 12.6 [Indemnity for Product Liability Claims];
      6. in respect of Seller’s obligation to make good a Defect;
      7. if the Seller violates its obligation to take out and maintain insurances in accordance with clause 13 [Insurance].
  1. If no Purchase Order has been concluded, at the time the relevant damage has occurred, the limitation of liability in accordance with clause 12.3.1 above shall be 100.000 (one hundred thousand) EUR.
  2. Purchase Orders for which a Party has declared avoidance of contract (“Rücktritt”) and which as a consequence have been unwound, do not count into the limitation of liability according to clause 12.3.1.
  3. Purchase Orders that the Buyer has terminated for convenience as per clause 15.3 [Discretionary Termination of Purchase Orders], count into the limitation of liability according to clause 12.3.1 only with the amounts actually paid to the Seller by the Buyer.
1. Further Limitations agreed in Purchase Orders

Buyer and Seller shall be free to amend clause 12.3 [Limitation of Liability] by a Purchase Order and to agree on suitable sub-limitations for

- - - 1. Seller’s delay in delivery, and/or
      2. Failure to achieve Product Guarantees.
1. Indemnity for Intellectual Property Claims

Each Party (the “Indemnifying Party”) shall – regardless of its fault – indemnify (“freistellen”) the other Party (the “Suffering Party”) from and against all claims, proceedings, damages, costs, expenses (including reasonable attorney’s fees) arising out of or related to the allegation of any third party that the use, sale or other disposal of the Product constitutes an infringement of industrial or intellectual property rights (including, but not limited to patents, utility models, design rights, copyrights and trademarks) or an unauthorized use of know-how, trade secrets or other proprietary rights. The Indemnifying Party shall, at its own costs, take over the defense against such claims, if the Indemnifying Party so request or the Suffering Party so demands.

1. Indemnity for Product Liability Claims

Buyer and Seller agree that as between themselves, Seller shall be regarded the sole “producer/manufacturer” of the Product. Hence, Seller shall – regardless of its fault – indemnify (“freistellen”) the Buyer from and against all claims, proceedings, damages, costs, expenses (including reasonable attorney’s fees) arising out of or related to any alleged claim raised against the Buyer under any applicable product liability Law.

1. Liability of Joint Ventures
  1. If the Seller is, or later on becomes, a joint venture, the members of the joint venture shall be jointly and severally liable to the Buyer for the performance of Seller’s obligations under this Contract and the Purchase Orders. The joint and several liability shall cover all liabilities under any Purchase Order regardless of such Purchase Order having been concluded or such liabilities having arisen prior to or after the joint venture was formed.
  2. If Seller enters into or is transferred into a joint venture after this Contract has been concluded, Seller shall see to it that all joint venture partners sign an undertaking opposite the Buyer by which they subject themselves to the joint and several liability as set out in clause 12.7.1.
  3. The Joint venture leader shall have the authority to make binding decisions for the Seller and each member of the joint venture.
2. Prescription Period („Verjährung“)
  1. The Parties agree, that no right or claim under this Contract or any Purchase Order shall be time-barred (“verjährt”) prior to the termination of this Contract.
  2. Subject to clause 12.8.1 above and without prejudice to clause 11.3.4 [Defect Liability Period], the Parties agree that the normal prescription period shall be [5] years in deviation from § 195 BGB prescribing [3] years.
  3. Without prejudice to clause 11.3.4 [Defect Liability Period], the Parties agree, that all liabilities and claims, known or unknown, of the Parties against each other arising out of or in connection with this Contract or any Purchase Order shall be time-barred (“verjährt”) latest after 25 years after delivery of the Product unless a different arrangement was made in the individual order. This prescription period shall not apply in case of intent (“Vorsatz”) in which case the statutory prescription periods shall apply.

Insurance
1. General
  1. Seller shall at its own expense procure and maintain with financially sound and reputable insurers with a minimum rating of AA- (Standard & Poor’s or Moody’s or comparable rating institutes) and having their principal office in a member state of the European Union, a Thirdy Part Public, Product and Pollution Liability insurance of at least EUR 10 Mio. per occurrence and in the annual aggregate. Seller’s subcontractors must be co-insured under Seller’s insurances.
  2. Seller shall at its own expense procure and maintain an appropriate liability insurance to cover potential claims for breach of product guarantees. With regard to the agreed performance guarantee the supplier shall obtain and maintain a warranty and damage compensation insurance against excessive loss of performance of the PV modules. The rules of 13.1.1, 13.1.3 and 13.1.4 apply accordingly.
  3. Buyer may at any time demand from Seller to provide, without undue delay, certificates of the required insurances. If the Seller is in delay with producing the certificate, Buyer shall have the right to retain all or some payments until Seller has submitted the certificate.
  4. The obligation to take out and to maintain insurances shall neither affect nor limit Seller's liability under the Contract, any Purchase Order or under applicable Law.
2. PV Warranty Insurance
  1. Seller shall obtain and maintain until the end of all defect liability periods a photovoltaic warranty insurance for all Product satisfying the following minimum requirements:
    - 1. the insurance shall at least insure the following events:

Defects in the Product,

Insurance coverage transfers to the Buyer in the event of Seller’s default;

- - - 1. the insured sum shall be 5% or more of the Product value, dedicated exclusively to the Product bought under each Purchase Order;
      2. the insured sum shall be maintained until the end of all applicable defect liability periods, shall not decrease and shall not be cancellable.
  1. Seller shall provide a proof that Seller has taken out the photovoltaic warranty insurance as required within thirty [30] Days after conclusion of a Purchase Order. If the Seller is in delay with producing the proof, Buyer shall have the right to retain all or some payments until Seller has submitted the proof.

Exceptional Events

If the fulfillment of an obligation under this Contract or under a Purchase Order becomes impossible for the Party owing such performance (the “debting Party”) or for anyone, the debting Party shall not be obliged to fulfill that particular obligation anymore (§ 275 I BGB)

The debting Party may refuse performance to the extent that such performance would require an effort which, having regard to the content of the Purchase Order and the requirements of good faith, would be grossly disproportionate to the other Party's interest to receive specific performance. In determining the efforts to be expected of the debting Party, account shall also be taken of whether the debting Party is responsible for the impediment to performance (§ 275 II BGB).

The debting Party may also refuse performance if the debting Party has to perform personally and it cannot reasonably be expected of the debting Party after weighing the obstacle to its performance against the other Party's interest to receive specific performance (§ 275 III BGB).

The other Party may claim damages and declare avoidance of contract in accordance with § 275 IV BGB and as specified in clauses 12 [Liability] and 11.7 [Avoidance of Contract].

In respect of clause 14.1 above, the Parties agree that a temporary inability to perform shall be considered to be a permanent inability to perform latest after [90] Days after the relevant performance obligation was due.

Termination
1. Termination for Good Cause

Grounds for Termination

- - 1. Subject to the following provisions of this clause 15 [Termination], Seller and Buyer shall each be entitled to their rights of termination for good cause (“wichtiger Grund”) under the Governing Law.
    2. Where a right to termination requires a good cause („wichtiger Grund“) or similar, then such “good cause” shall inter alia and without prejudice to events of “good causes” recognized by the Governing Law, subsist:
      1. if the Seller, in the reasonable opinion of the Buyer, violates a compliance obligation set out in clause 10.1.3 [Business Ethics and Compliance];
      2. if a Party is unable to fulfill an obligation under a Purchase Order for more than [90] Days due to an exceptional event (see clause 14 [Exceptional Events];
      3. if the Seller is in delay with a delivery for more than [30] Days;
      4. if the Seller is in delay with taking out the required insurances or with producing the pertaining evidence that Seller has done so, for more than thirty [30] Days;
      5. if the Buyer is in delay of payments that in aggregate amount to [25] per cent or more of the Purchase Order Price for more than [90] Days;
      6. in the events described in Article 90 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 namely:

the contract has been subject to a substantial modification which would have required a new procurement procedure pursuant to Article 89 of that Directive 2014/25/EU;

the Seller has, at the time of contract award, been in one of the situations referred to in Article 57(1) of Directive 2014/24/EU and should therefore have been excluded from the procurement procedure pursuant to the second subparagraph of Article 80(1) of this directive;

the Contract should not have been awarded to the Seller in view of a serious infringement of the obligations under the Treaties and this Directive that has been declared by the Court of Justice of the European Union in a procedure under Article 258 of the Treaty on the Functioning of the European Union (TFEU);

- - 1. A termination for good cause generally requires a prior written warning to the defaulting Party in which the defaulting Party is given a reasonable period to remedy the notified defaults. Such warning is not required where so foreseen by the Governing Law. If the defaulting Party does not remedy, nor starts to remedy and forthwith diligently and actively continuous to remedy, the notified defaults, the other Party may exercise its right to terminate for good cause.
    2. A termination for good cause may be exercised in relation to this Contract and/or in relation to a Purchase Order or parts of such Purchase Order.
    3. A termination for good cause of this Contract does not affect the validity of any Purchase Orders concluded under it.

Consequences of Termination for Good Cause

- - 1. In case of a termination for good cause,
      1. the Seller shall only be entitled to demand payment for the part of the Scope of Supply delivered up to the time of termination;
      2. if not taken place earlier, the Seller shall transfer the title of ownership to the Buyer of all Product delivered latest when Buyer makes a final payment,
      3. the Buyer shall return to Seller the financial guarantees that Seller has provided, except for those financial guarantees that are still needed to secure ongoing liabilities of the Seller (for example, the defect liability guarantee);
      4. the Parties shall align all other matters that need to be handled in order to close the terminated (portion of) Contract.
    2. The right to claim damages shall not be excluded by the termination.
1. Automatic Termination of this Contract
  1. Unless extended according to clause 1.4 [Contract Term], this Contract shall automatically terminate after the end of, as applicable, the Base Term, respectively the Extended Term, unless extended in accordance with clause 1.4 [Contract Term].
    
    The contract terminates, if f the maximum quantity or maximum value specified in the EU-notice (150 EUR Mio.) is reached taking into account all individual orders from all framework agreements that were concluded as a result of the "Framework Agreement PV Modules 2023" tender. In this case Uniper will inform the framework contract partner about the termination of the framework contract.

The contracting parties can mutually expand the framework contract and thus also the maximum quantities or maximum value, insofar as this is permissible under the relevant public procurement regulations and the provisions of this contract.

- 1. The automatic termination of this Contract does not affect the validity of any Purchase Orders concluded under it.
  2. Without prejudice to a Party’s right to terminate this Contract for good cause, neither Party shall have a right to terminate this Contract for discretion prior to the end of the Base Term and the relevant Extended Term (if any). Notwithstanding the foregoing, Buyer shall have a right to terminate this Contract in the events described in Article 90, item (a) of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 namely, if the Contract has been subject to a substantial modification which would have required a new procurement procedure pursuant to Article 89 of that Directive 2014/25/EU.
1. Discretionary Termination of Purchase Orders
  1. Buyer may, at Buyer’s sole discretion and at any time, terminate a Purchase Order in whole or in parts by [15] Days’ written notice to the Seller.
  2. In case of a discretionary termination and subject to Buyer’s reasonable instructions given in the termination notice, Seller shall without undue delay:
    - 1. stop the manufacturing process of the ordered Product, unless Seller wants to sell the previously ordered Product to another customer;
      2. prepare the final invoice;
      3. clarify with Buyer the handling of quantities of the Product that are manufactured but not yet delivered;
      4. cancel relevant subcontractor and sub-supplier contracts whose goods and services are no longer required due to the termination;
      5. pay back to Buyer any portion of the Purchase Order Price that Seller has received in excess;
      6. align with the Buyer on all other matters that need to be handled in order to close the terminated Purchase Order.
  3. In case of a discretionary termination, the Buyer shall:
    - 1. pay the relevant portion of the Purchase Order Price for all quantities of the Product being already delivered;
      2. reimburse all expenditures to the Seller that Seller incurs due to the termination (e.g. cancellation costs due to cancellation of subcontractor and sub-supplier contracts, costs for disposal of half-manufactured Products that cannot be used anymore, etc.);
      3. return to Seller the financial guarantees that Seller has provided, except for those financial guarantees that are still needed to secure ongoing liabilities of the Seller (for example, the defect liability guarantee);
      4. align with the Seller on all other matters that need to be handled in order to close the terminated Purchase Order.
  4. The Seller shall have no right to terminate a Purchase Order for Seller’s discretion.

Governing Law and Dispute Resolution
1. Governing Law
  1. This Contract and any Purchase Order concluded under it, is governed exclusively by the substantive laws of Germany without regard to its choice of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
  2. Article 12 (2) Rome I Regulation (EC/593/2008) shall not apply.
  3. Except for obligations arising out of an act of unfair competition, the restriction of competition of an infringement of intellectual property rights, this choice of law shall also apply in relation to any non-contractual obligations arising from or related to this Contract, any Mini-Competition conducted under this Contract and any Purchase Order concluded under it.
2. Dispute Resolution
  1. All disputes arising out of or in connection with this Contract, and any Purchase Order concluded under thereunder, or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) (the “DIS-Rules”) without recourse to the ordinary courts of law.
  2. The arbitral tribunal shall be comprised of [3] three members. Each member shall be a fully qualified German lawyer (“Volljurist mit der Befähigung zum Richteramt”).
  3. The seat of the arbitration is Düsseldorf, Germany.
  4. The language of the arbitration shall be English.
  5. The rules of law applicable to the merits shall be the Governing Law in accordance with clause 16.1 [Governing Law].
  6. The Parties agree that in case the arbitration shall be conducted as Expedited Proceedings and that Annex 4 of the DIS Arbitration Rules shall apply.
  7. With regard to section 24.4 of the DIS-Rules, the Parties agree that the arbitral tribunal shall not decide ex aequo et bono or act as an amiable compositeur.
Miscellaneous
1. Language, Notices, Written Form, other Communication

Contract Language, Notices

- - 1. The governing language of this Contract and of all future communications shall be English. All notices under or relating to this Contract shall be sent to:
      1. If to Uniper:

Juliana Moritzen

Uniper SE Holzstrasse 6

40221, Düsseldorf

…

- - - 1. If to Seller: ….
    1. The governing language of a Purchase Order and all communication under or relating to such Purchase Order shall be English, unless Buyer and Seller expressly agree otherwise in the Purchase Order. All notices under or relating to a Purchase Order shall be sent to the persons and addresses stated in the relevant Purchase Order.
    2. A notice under clauses 17.1.1.1 and 17.1.1.2 above that is in electronic format and duly signed in compliance with clause 17.1.2 below, is duly delivered if such notice is attached to an email and sent to the relevant recipient. The sender has the burden of proof that the email has actually been received by the recipient.

Written Form for Contract, Purchase Orders and Notices

- - 1. The conclusion of this Contract as well as amendments and supplements to this Contract require the written form. The same also applies to an amendment or cancellation of this clause. The same applies to all notices under this Contract.
    2. The form requirements set out in the preceding clause 17.1.2.1 shall also apply to Purchase Orders and to all notices under Purchase Orders.

Other Communication

Day-to-day communication under this Contract or a Purchase Order can be made by simple email.

1. Assignment
  1. Neither Party shall have the right to assign this Contract or any of its rights or obligations hereunder to any third party without the prior written consent of the other Party. Notwithstanding the preceding sentence, Buyer shall always be entitled to assign this Contract or its rights and obligations hereunder to an Affiliate.
  2. Clause 17.2.1 above, shall apply to Purchase Orders accordingly.
2. Confidentiality
  1. All information, specifications, drawings and other data (each and all of the foregoing shall be “Confidential Information”) communicated by a Party to the other Party in writing, orally or otherwise shall be treated confidentially by the receiving Party. Confidential Information may not be disclosed to third parties unless such Confidential Information is generally known or otherwise lawfully came to the knowledge of the receiving Party. However, Confidential Information may be disclosed, on a need to know basis as far as such disclosing is required for the purpose of this Contract, to a Party’s and such Party’s Affiliates’ officers, employees, subcontractors, suppliers, investors or professional advisors, provided that confidential treatment is secured.
  2. This confidentiality clause is without prejudice to each Party’s obligation to comply with all requirements for the protection of intellectual property and applicable data protection law.
  3. This clause 17.3 [Confidentiality] shall apply accordingly to any Purchase Order concluded under this Contract.
3. Severability
  1. In the event that any provision of this Contract, or the application thereof, is held by any court of competent jurisdiction or arbitration tribunal to be illegal or unenforceable, the Parties shall in such event amend that provision in such a reasonable manner as to achieve the intention of the Parties without illegality or unenforceability and shall negotiate in good faith in order to agree the terms of a mutually acceptable and satisfactory alternative provision in place of the deleted provisions.
  2. This clause 17.4 [Severability] shall apply accordingly to any Purchase Order concluded under this Contract.

(Electronic) Signatures


For and on behalf of XXX:
Date:			Date:
Designation:			Designation:
Name:			Name:
Signature:			Signature:

For and on behalf of XXX:
Date:			Date:
Designation:			Designation:
Name:			Name:
Signature:			Signature:

RFP Appendix 1. Frame Contract - Supply of PV Modules FINAL.docx